Supreme Court justices used words like “astounding” and “problematic” on Tuesday when reviewing efforts by a small Ohio town to keep tabs on people who go door-to-door to advocate their causes.
During hourlong arguments, several justices strongly suggested they believed the town had run afoul of the Constitution’s 1st Amendment when it passed an ordinance that requires permits for door-to-door canvassing.
“The breadth of this thing is novel to me,” Justice Antonin Scalia told a lawyer defending the ordinance.
Leaders in Stratton, Ohio, said they passed the law in 1998 to protect residents from fraud and aggravation. The town, about a mile from West Virginia, has about 300 residents, most of them retirees.
Jehovah’s Witnesses suit
The Jehovah’s Witnesses immediately sued to block the law, arguing that it limits their 1st Amendment free speech rights. The law requires anyone who wants to canvass or solicit people in their homes to get a permit from the mayor’s office first.
“We don’t believe anyone needs to go to the government to get permission to speak to your neighbor,” Paul Polidoro, a lawyer for the Jehovah’s Witnesses, told the justices. “We’re not seeking solicitation of funds; we’re merely interested in talking about the Bible.”
A divided federal appeals court in Cincinnati upheld most of the ordinance last February, ruling it represented a legitimate government effort to prevent fraud and protect residents’ privacy.
But the justices seemed highly skeptical Tuesday, with several suggesting that the residents could always post “No Soliciting” signs on their doors to keep uninvited people away.
Justice’s key question
A critical moment in the arguments came when Justice Anthony Kennedy, one of the court’s most ardent defenders of the 1st Amendment, suggested the ordinance would cover a person who walked across the street to talk to his neighbors about garbage pickup or their member of Congress.
“You think it’s a beautiful idea that I have to ask the government for permission before I go down the block … to talk about garbage pickup?” Kennedy asked Abraham Cantor, a lawyer for Stratton. “I have to ask the government for permission to do that? That’s astounding.”
Kennedy’s question appeared to expose a fatal flaw in the ordinance. Cantor struggled to answer it, first arguing that such a situation would not be covered.
But Justice David Souter demanded to know where the ordinance excluded people like “Justice Kennedy’s neighbor.” Scalia insisted that the town so broadly defined “canvasser” that if it covered Jehovah’s Witnesses, it “certainly would include the garbage canvasser.”
By raising concerns about the wide-ranging application of the ordinance, Kennedy seemed to prompt other justices to think of more problems.
“How about trick-or-treaters?” Justice Sandra Day O’Connor asked. “Or Christmas carolers?”
David Gormley, the Ohio solicitor general, argued that the statute was necessary to protect residents who have “a natural fear when an uninvited person shows up on private property.”
But Scalia scoffed at that.
“The safest societies in the world are totalitarian dictatorships. There’s no crime,” Scalia said. “But one of the costs of liberty is a slightly higher risk of unlawful activity.”
Polidoro argued that the Stratton ordinance is similar to other local laws passed in the 1930s and 1940s to curtail the activities of the Jehovah’s Witnesses. The court struck down those laws, largely because they gave local officials too much discretion to deny permits.
Polidoro also maintained that the Stratton ordinance is contrary to a 1995 decision in which the court overturned an Ohio law that barred people from distributing anonymous campaign literature. The Stratton law would prevent people from staying anonymous, he argued.
Other, unrelated problems
But that argument could raise other, unrelated problems for the court. Justice Stephen Breyer said he was worried the court’s decision could affect federal and state election-related reporting and disclosure requirements.
According to the Brennan Center for Justice, lower courts have interpreted the 1995 decision to create a “constitutional right to virtually complete anonymity in elections.”
A California appellate court, for example, said the state could not require a candidate to disclose his identity on a mass mailing he sent that attacked his opponent.
Several justices suggested they could distinguish those cases, because the government would have a greater interest in checking a person’s veracity where he was soliciting money or campaigning for office, not simply expressing his views.
